In Re Fortenbury

101 P.2d 105, 38 Cal. App. 2d 284, 1940 Cal. App. LEXIS 642

• Court: California Court of Appeal
• Decided: April 3, 1940
• Docket: Crim. 3317
• Status: Published

Opinions

DORAN, J.

Duly cited with contempt of court for the violation of a temporary restraining order, the petitioner herein, after a hearing on such citation, was adjudged guilty and fined five dollars with the alternative of one day in the county jail for each two dollars of said fine remaining unpaid.

Petitioner seeks a writ of habeas corpus.

The temporary restraining order and order to show cause were based upon a verified complaint in an action wherein Edward Chiate and Hazel I. Chiate, doing business under the fictitious name and style of Sunset Poultry Market, were plaintiffs, and the United Cannery Agricultural Packing and Allied Workers of America, C. I. 0., an unincorporated association, Valley Poultry Workers Union, Local No. 17, an unincorporated association, and others, were defendants.

A memorandum opinion was filed by the trial judge in connection with the disposition of the contempt proceedings; excerpts therefrom which follow contain the pertinent facts revealed by the record: “This action was brought to enjoin picketing of plaintiffs’ markets by members of the defendant unions. After an informal conference in chambers with counsel for plaintiffs and defendants, at which it was conceded that no labor dispute existed between plaintiffs and their employees, a temporary restraining order was issued prohibiting picketing. Subsequently defendants moved to vacate the restraining order for reasons hereinafter appearing.

“Plaintiffs are engaged in the business of selling poultry and eggs at retail and wholesale, at two places of business in the City of Los Angeles. None of plaintiffs’ employees are members of any of the defendant unions and there is not and never has been any labor dispute between plaintiffs and their employees. Plaintiffs purchase poultry and eggs for resale purposes throughout California, Utah, Colorado, and Oregon, a portion thereof being produced by the Runnymede Farms, located at Reseda, California. The Runnymede products are not separated from poultry and eggs purchased from others, but are commingled with various producers, and the commingled produce is sold to plaintiffs’ customers.

“For some time past the employees of the Runnymede Farms, who are members of one or more of the defendant unions, have been involved in a labor dispute with their employer and have been on strike. The defendant unions demanded that the plaintiffs cease purchasing merchandise from the Runnymede Farms because of the labor dispute there existing. Upon the refusal of plaintiffs to accede to that demand the defendants stationed picket lines in front of plaintiffs’ markets.

“In the instant case, while plaintiffs have had no dealings with the defendant unions, they cannot be classed as strictly neutral for the reason that they are purchasing and selling merchandise produced by the persons with whom the unions are in dispute. If Runnymede Farms is paying less than the union scale of wages or is requiring its employees to work longer than union hours, the plaintiffs, by purchasing Runnymede products, may have an advantage over other dealers in that they may be able to sell at a lower price than their business rivals, or may sell at the same price and make a greater profit than others. To this extent, at least, there is a unity of interest between Runnymede Farms and the plaintiffs, and the plaintiffs are in a more favorable position than those who are dealing in union merchandise. The strategy of the unions is to prevent the sale of nonunion merchandise. The Runnymede poultry and eggs come in contact with the public at retail stores, not at the farm. If the defendants cannot follow the product and, by means of picketing the same wherever it may be sold at retail, request the purchasing public to refrain from buying it, they will be unable to make known their grievances to the public in the only manner available to them. Such a request, lawfully and peacefully made by picketing the product at the place at which the request will reach the purchaser, if pointed solely at and limited to the product and not aimed at the plaintiffs, will be a primary boycott against the merchandise and against the producer, the Runnymede Farms. Punishment will not thereby be visited upon third persons, the plaintiffs, who are without interest in the existing dispute. But picketing directed in any manner at the plaintiffs personally, at their markets as such, or at the collective produce sold generally by them, will constitute an illegal act and will be enjoined for the reasons hereinbefore stated.

1 ‘ Other questions than those herein discussed might be presented if the Runnymede Farms were the sole source of supply of the poultry and eggs sold by plaintiffs. Such questions cannot arise in this case because plaintiffs may obtain ample quantities from hundreds of producers and, in fact, according to their own allegations, they have been and are procuring merchandise from several states.

“After the service of the temporary restraining order two affidavits were filed charging four pickets with contempt of court in that they continued picketing after service of the order. One affidavit charged them with having picketed during the remainder of the day after service, the other charged violation of the order on two subsequent days. The latter affidavit was not served with the citation and the court will therefore consider only the charge contained in the one affidavit. The persons cited admit that they continued picketing during the remainder of the day after they were served, but their counsel argued that they should be excused because they had not received legal advice as to their duties. The temporary restraining order was plainly titled and was couched in unambiguous language. The deputy sheriff who served the order states in an affidavit that he read and explained the order to the pickets and they admit that he did so. It was their duty to cease their activities immediately upon service of the order without awaiting legal advice.”

In addition to the foregoing it should be noted that the complaint in the action, among other things, alleged in substance that defendants and each of them combined and confederated, conspired and agreed among themselves and with each other to compel the plaintiffs to refrain from fulfilling their obligations with Runnymede Farms, namely, in accepting poultry and eggs therefrom; that in furtherance thereof defendants declared a boycott against plaintiffs and maintained a picket line in front of plaintiffs’ place of business; that in furtherance of said plan and in an endeavor to effect the objects and purposes thereof and with such common intention and design, the defendants and each of them did and caused to be done certain acts, briefly, as follows:

1. That defendants maintained a large number of pickets at, upon and near the premises of plaintiffs and upon the public highway near and adjacent to said premises, and by intimidation and threats endeavored to stop customers and patrons of plaintiffs from entering said place of business;

2. That defendants followed, harassed, spied upon and intimidated the customers and patrons of plaintiffs in an attempt to prevent said customers and patrons from purchasing from said plaintiffs;

3. That said pickets and representatives so stationed near and about the place of business of plaintiffs, wearing badges with inscriptions thereon, “O. I. 0.’’, walked back and forth upon the sidewalks and premises of plaintiffs’ place of business ;

4. That said defendants followed a truckload of merchandise of plaintiffs to be delivered to plaintiffs’ customer and upon its arrival informed plaintiffs’ customer that said merchandise was “hot cargo”; that when customers were about to enter the place of business of plaintiffs said customers were approached and told not to purchase merchandise from plaintiffs for the reason that said market was unfair to organized labor;

5. That defendants followed a truckload of merchandise to be delivered to plaintiffs’ customer, namely, the Thrifty Drug Stores, and upon the arrival of said merchandise defendants entered the Thrifty Drug Store, displayed and distributed pamphlets and leaflets which in substance urged the readers thereof not to patronize the Thrifty Drug Stores, whereupon the management of said stores refused to take merchandise from plaintiffs and their representatives; that several persons called the plaintiff, Edward Chiate, by telephone and after refusing to give their names stated that if he (referring to plaintiff) did not refrain from buying chickens from Runnymede they “would get him and his family”.

The restraining order in part was as follows: “Upon the reading and filing of the verified complaint in the above entitled matter, it appearing to the satisfaction of the court that this is a proper case for a temporary restraining order, and that plaintiffs and their counsel desire in good faith to present to the court a bona fide contention respecting the rights of said plaintiffs as contended for in said complaint, and that unless the temporary restraining order prayed for in said complaint is granted, the effect of the decision of the court upon the order to show cause, if favorable to plaintiffs, would be largely frustrated, and great and irreparable injury and damage would ensue to the plaintiffs before the matter could be heard on notice. ...” Wherefore it was ordered in substance that defendants and each of them should appear before the court on November 13th and show cause why they should not be enjoined pending the final determination of the action, and, pending the hearing of the order to show cause were enjoined, from doing certain things and engaging in certain activities, which injunctions approximated the allegations of the complaint. Subdivision “ (i) ” thereof was as follows: “From stationing, placing or maintaining any picket, or pickets, or person or persons, in front of or in the immediate vicinity of the said markets of the plaintiffs1 ’. It is argued by petitioner that by reason of this last-mentioned injunction the restraining order was void.

It is contended in substance by petitioner that the restraining order and judgment violate the constitutional guaranties of freedom of speech and freedom of the press. It is also contended that either a primary or a secondary boycott is legal. Petitioner's closing brief sums up and sets forth these contentions as follows: 11 The central issue in the instant Petition for Writ of Habeas Corpus is: ‘Is peaceful secondary picketing legal 1’ ”, and, “Whether an order enjoining all peaceful picketing abridges constitutional right, and Whether habeas corpus is an appropriate remedy procedurally. ”

A liberal portion of petitioner’s briefs is devoted to the subject of habeas corpus. It may be conceded that the question as to whether resort to the writ of habeas corpus is the appropriate remedy, is always addressed to the sound discretion of the court. In that regard it may be conceded, also, for reasons which abound in the numerous decisions on the subject, that courts uniformly have been liberal in the granting of the writ and as well in a consideration of petitions therefor. It is necessary to observe, however, in that connection that such liberality has not been without valid limitation. Thus, it is well settled that the writ of habeas corpus does not afford an all-inclusive remedy available at all times as a matter of right. It is generally regarded as a special proceeding. “Where one restrained pursuant to legal proceedings seeks release upon habeas corpus, the function of the writ is merely to determine the legality of the detention by an inquiry into the question of jurisdiction and the validity of the process upon its face, and whether anything has transpired since the process was issued to render it invalid.” (13 Cal. Jur., p. 217.) Chapter I of part II, title XII, of the Penal Code, contains the statutory law with regard to the writ of habeas corpus, and determines the power of the court to discharge under the writ.

From a review of the record it is at once evident that the trial court had jurisdiction of the subject-matter and of the person of the petitioner, and that the proceedings were legal in every respect. Neither the original restraining order, which was not void ab initio, nor the commitment of petitioner following the hearing of the contempt proceedings violated any constitutional rights of petitioner. The orders and as well the judgment of the trial court finding petitioner guilty of contempt were the orderly processes of legally constituted authority. The action of the trial court being valid, it may be enforced by lawful and appropriate means.

The record reveals that the original restraining order was issued on the 3d day of November, 1939; that the order directed the petitioner and others to appear before the court on the 13th day of November, 1939, and show cause why they should not be enjoined and restrained from doing the acts specified in said restraining order. It should be emphasized that the contempt was based on the original order and resulted from acts committed between the 3d day of November and the 13th day of November. In other words, the petitioner elected to ignore the temporary restraining order issued by the court, decided for himself that the order was invalid, and violated the same. It was petitioner’s plain duty to obey the order. Petitioner now seeks to obtain—by means of a writ of habeas corpus—a determination of questions which properly would have been adjudicated at the hearing of the order to show cause on November 13 th. In the circumstances, the law affords no such expedience at the expense of respect and due regard for its orderly processes. Incidentally, the outcome of the hearing on the order to show cause, whether favorable to the plaintiffs or to the defendants, would not affect the validity of the contempt proceedings, or the judgment in connection therewith. (See In re Charles Valterza, 37 Cal. App. (2d) 682 [100 Pac. (2d) 337].)

Summing up the contentions of the parties to the action, each relies on that article of the Constitution which provides as follows: “All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property; and pursuing and obtaining safety and happiness.” (Art. I, sec. 1, Cal. Const.)

The defendants, and petitioner herein, also rely upon the provisions of sections 9 and 13 of article I of the Constitution of California, and as well upon the Fourteenth Amendment to the Constitution of the United States.

Thus a legitimate dispute exists between the parties to the action with regard to the claims of each under the Constitution. The judicial branch of the government was created for the purpose of settling such disputes. Plaintiffs sought a determination of the questions involved, in the court: the governmental agency established to meet such needs. The right to appeal for relief to the judicial branch of the government, together with the power in the judicial branch of the government to hear, consider and adjudicate, according to the orderly procedure of the law, any and all issues raised by such appeal for relief, are products of the Constitution. Such resort to the remedy provided for by law, although a right, was no less a duty. It was likewise defendants’ plain duty to abide the outcome. Each is bound to yield to legally constituted authority. To hold otherwise would in effect accord to each the privilege to settle such disputes by any manner or means each might choose to adopt.

Having elected to ignore the orderly processes of the law, petitioner has no alternative but to accept the consequences.

Finally, it should be noted that nowhere in the record or in the petition for the writ of habeas corpus does it appear that the petitioner is a citizen of the United States. It is suggested in Hague v. Committee for Industrial Organization et al., 307 U. S. 496 [59 Sup. Ct. 954, 83 L. Ed. 1423], that the constitutional guaranties there considered are possessed by citizens of the United States but do not extend to aliens. Inasmuch as the subject is not mentioned by either respondent or petitioner, it has received no consideration in the opinion.

For the foregoing reasons the writ is discharged and the petitioner remanded.

York, P. J., concurred.